Dismissal because of HIV status is discrimination prohibited by s 187(1)(f) and is therefore an automatically unfair dismissal.

Facts:

The applicant was appointed as Stable Yard Manager and horse riding instructor for the Mooikloof Equestrian Centre. The letter of appointment confirmed his appointment “on a temporary basis for a period of three months, where after the position will (sic) reviewed”. The appointment was announced in a notice to all stablers, pupils and riders, listing the applicant’s 27 years’ experience in horse riding, instructing, stable yard management and judging of dressage competitions. The notice referred to his impressive curriculum vitae and achievements, which included, inter alia, representing South Africa in dressage championships as well as being a qualified SANDF riding instructor.

In his pre-employment interviews the applicant was asked about his health, whether he had any significant debt and his marital status. He stated that he was in good health, that he had a bond over an immovable property and that he was married. In reply to a question about his religious affiliation he stated that he was agnostic. A question concerning his sexual orientation arose to which he replied that he was homosexual and was in a same - sex civil union.

The applicant has been living with HIV for some 18 years. He commenced a regime of medication and treatment since his diagnosis when he was informed he had only a few months to live. His evidence and that of his medical expert was that he has consistently adhered to a proper treatment regime and has at material times been and remains in good health. According to his medical expert, and which evidence was unchallenged, his CD4 count at the material time was exceptionally low and his viral load was at such a low level as to be undetectable. He was said to be in excellent health and able to perform the duties required of him at all material times.

The applicant was requested to complete a Personal Particulars Form (“the PPF”). The PPF required information concerning allergies as well as medication taken by the employee. The applicant struck out the words “medikasie wat daarvoor geneem word” and wrote in the word “illnesses” which he listed as asthma, DVT (“deep vein thrombosis”) and HIV. He listed six allergies including penicillin and listed his chronic medication as Warfarin, a blood thinning medication for DVT and Kaletra and Truvada, which are antiretroviral drugs.

The following day a confrontation ensued and the applicant was dismissed and instructed to vacate the premises. The applicant did not leave immediately as he had not received formal notice of dismissal nor his salary, and his personal belongings (including medication) were on the premises. He also had no alternative accommodation. The applicant was forcibly removed from the respondent's premises and verbally abused by a security manager at the estate. Following the intervention of his attorneys of record he was given until 12:00 the next day to vacate the premises.

The applicant’s dismissal was confirmed in a final notice which accompanied his salary payment. The notice declared the reason for his dismissal as “fraudulent misrepresentations”. It recorded that he did not qualify for one weeks’ notice on account of the reason for his dismissal, but offered him the equivalent amount as a “gesture of humanity”. The applicant refused to sign the acknowledgement of receipt accompanying the notice.

Extract from the judgment:

[13] Although the pre-trial minute conflates issues of lawfulness and fairness the legal issues can be determined to be the following:

Whether the dismissal of the applicant was automatically unfair, or alternatively procedurally and/or substantively unfair, and if so, the appropriate measure of compensation to which he is entitled.

Whether the applicant was unfairly discriminated against on the basis of his HIV status and if so, the appropriate relief to which he is entitled.

[34] The legal prohibition against unfair discrimination in the workplace derives from the equality right enshrined in section 9 of the Constitution of the Republic of South Africa Act, 108 of 1996, which states:

“Everyone is equal before the law and has the right to equal protection and benefit of the law;

Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken….”

[35] The LRA renders a dismissal for a discriminatory reason automatically unfair unless it can be justified on the grounds of inherent job requirements: section 187 (2)(a). Unfairness is premised on the reason for the dismissal and section 187 (1) defines an automatically unfair dismissal as occurring when the reason is -

“f. that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

[37] Section 6 (1) of the Employment Equity Act specifically prohibits discrimination in the workplace in the following terms :“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth”. Section 6(2) makes it clear that it is not unfair discrimination to-

take affirmative action measures consistent with the purpose of this Act; or

distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

[38] Section 11 of the Employment Equity Act requires an employee to allege a prima facie ground of unfair discrimination and places the onus on the employer to prove that the discrimination was fair. The Labour Court is empowered to grant appropriate relief for unfair discrimination as envisaged in section 50(2) as follows:

“If the Labour Court decides that an employee has been unfairly discriminated against, the Court may make any appropriate order that is just and equitable in the circumstances including-

payment of compensation by the employer to that employee;

payment of damages by the employer to that employee;

an order directing the employer to take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other employees;

an order directing an employer, ….to comply with Chapter III as if it were a designated employer;

an order directing the removal of the employer’s name from the register referred to in section 41; and

the publication of the court’s order. ”

[39] The Employment Equity Act enjoins the Court to have regard to relevant codes of practice as well as international conventions. The Code of Good Practice on the Key Aspects of HIV and AIDS in Employment (“the Code”) issued in terms of section 54 (1)(a) of the EEA endorses the principle of non-discrimination based on HIV status. …

[41] The prevalence of egregious discrimination on the basis of HIV and AIDS in South African society has formed the subject of extensive comment in labour and constitutional jurisprudence. It is trite, following Hoffmann v South African Airways (2000) 21 ILJ 2357 (CC) that discrimination on the basis of HIV status is unconstitutional. Ngcobo J’s dictum in this regard is instructive :

“The appellant is living with HIV. People who are living with HIV constitute a minority. Society has responded to their plight with intense prejudice. They have been subjected to systemic disadvantage and discrimination. They have been stigmatised and marginalised. As the present case demonstrates, they have been denied employment because of their HIV positive status without regard to their ability to perform the duties of the position from which they have been excluded. Society’s response to them has forced many of them not to reveal their HIV status for fear of prejudice. This in turn has deprived them of the help they would otherwise have received. People who are living with HIV/AIDS are one of the most vulnerable groups in our society. Notwithstanding the availability of compelling medical evidence as to how this disease is transmitted, the prejudices and stereotypes against HIV positive people still persist. In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so when it occurs in the context of employment. It denies them the right to earn a living. For this reason, they enjoy special protection in our law.

Further :

“[35] ……. the devastating effects of HIV infection and the widespread lack of knowledge about it have produced a deep anxiety and considerable hysteria. Fear and ignorance can never justify the denial to all people who are HIV positive of the fundamental right to be judged on their merits. Our treatment of people who are HIV positive must be based on reasoned and medically sound judgments. They must be protected against prejudice and stereotyping. We must combat erroneous, but nevertheless prevalent, perceptions about HIV. The fact that some people who are HIV positive may, under certain circumstances, be unsuitable for employment as cabin attendants does not justify a blanket exclusion from the position of cabin attendant of all people who are HIV positive.

[36] The constitutional right of the appellant not to be unfairly discriminated against cannot be determined by ill-informed public perception of persons with HIV. “

[42] Having regard to these considerations, the court held that the denial of employment to the appellant because he was living with HIV impaired his dignity and constituted unfair discrimination. In regard to testing Ngcobo J noted (at para [51]) that “.. item 4 of the SADC Code of Conduct on HIV/AIDS and Employment, formally adopted by the SADC Council of Ministers in September 1997, lays down that HIV status ‘should not be a factor in job status, promotion or transfer.’ It also discourages pre-employment t
esting for HIV and requires that there should be no compulsory workplace testing for HIV.”

Evaluation of evidence and argument : Claim A

[48] Section 187 requires the applicant to make out a prima facie case that the dismissal was on a prohibited ground. Once the applicant discharges this evidential burden the onus is on the employer to prove that the dismissal was not for a prohibited reason. If the employer fails it would then have to raise an alternative defence that although the dismissal was on a prohibited ground and therefore discriminatory, it was nevertheless justified by an inherent requirement without which the employee could not perform the essential job requirements. This test has been described as follows by Davis JA in Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) :

“Section 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove the contrary,that is to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in section 187 for constituting an automatically unfair dismissal”.

[49] In casu the fact of the applicant’s dismissal, though initially in dispute, became common cause and it is only the reason for the dismissal that remains in dispute. In this regard it is necessary to determine, where there are a number of reasons posited for the dismissal, what the main reason is, as well as to distinguish between the ostensible reason advanced by the employer and the real reason that emerges from the evidence. In this context the respondent’s assertion is that the applicant committed misconduct in failing to declare that he suffered from three illnesses (including HIV) at his pre-employment interview. The applicant submits that he was dismissed for being HIV positive and that this constitutes unfair discrimination based on his HIV status and resulted in his automatically unfair dismissal.

What was the reason for the applicant’s dismissal?

[50] The applicant submitted that it is common for employers with a less than legitimate motive to seek to disguise an act of discrimination as a misconduct dismissal since a dismissal for a discriminatory reason attracts significant penalties under the LRA. In this regard Mr Bank referred to Bootes (supra) where Pillay J held (at para [70]) that “camouflaging discrimination under the cloak of misconduct is one of the most insidious forms of unfair labour practices. Quick to perceive the unfairness, employees struggle to prove it”. Pillay J found that the employer had seized on the alleged misconduct of the applicant because it sought to disguise its desire not to have an HIV positive person in its employ. In casu, unlike Bootes, the veracity of the respondent’s stated reason for the dismissal (i.e. the applicant’s misconduct in failing to disclose that he was seriously ill) unfortunately did not form the basis of formal charges tested at a disciplinary enquiry, and on this basis alone can be refuted.

[51] On the facts the respondent knew the applicant was homosexual and in a civil union. Mr Bank, appearing with Ms Hassim from the Aids Law Project for the applicant, submitted that it was likely that the Malans already knew at the interview that the applicant was living with HIV, since it was common cause that Malan senior had an extensive network in the equestrian community and applicant’s inspiring history of successfully managing his HIV condition in the context of a successful career had been lauded in the media and would probably have come to his attention. Thus, he submitted, the applicant’s HIV status had been “floating around” and because he had not disclosed this the respondent had hoped to “catch him out” by extracting a formal disclosure on the PPF. The inference must therefore be drawn that once the respondent established this as a fact it determined to get rid of him. Mr Ackerman, for the respondent, denied that such a sinister motive could be attributed to its seeking of personal information for administrative purposes on the PPF. In this regard it is correct that the applicant had himself volunteered the information, referring to his “illnesses” and that the form only required medication and allergies to be listed. Although I am disinclined to attribute a sinister motive to the respondent in respect of the PPF, it is inexplicable that this information would be sought from only three employees of a staff of 30, and that it should moreover be sought from only those known to be homosexual. Furthermore Malan’s evidence that the PPF was a standard form to record the information of all employees for payroll and administrative purposes is belied by the fact that the PPF does not request banking details, which would have been essential employee information. It is common cause that the applicant inserted this of his own accord on the PPF. Herbst’s testimony that this was the first time in her five years of employment with the respondent that she had seen the PPF was not disputed and it was common cause that the content of the PPF differed substantially from the forms issued to other employees. However Malan’s testimony was that he was not aware that the PPF had been sent to the applicant. Furthermore, even though the applicant volunteered more medical information than was required and had not been directly required to reveal his HIV status, this would probably have emerged had he restricted his disclosures to the chronic medication requested on the PPF. On the probabilities therefore the respondent’s the circulating the PPF cannot be said to have been a mere administrative exercise. At the very least it would appear to be an attempt to extract information about the applicant’s HIV status, and would therefore constitute unfair discrimination based on HIV.

[54] The inescapable facts are that the applicant had no medical or physical impediment preventing him from performing his duties. This was not only his evidence and that of Prof Venter, but also Malan had been unable to dispute that (save for the two incidents related by Herbst) the applicant had acquitted himself well in a strenuous and demanding job. This renders spurious any notion that he was “severely ill” and belies the true rationale for his dismissal. The notion that HIV is synonymous with serious illness is however not unheard of. It emanates from a general stereotype about all people living with HIV, and which results in loss of dignity and a sense of self. Judge Edwin Cameron J in his poignant memoir “Witness to AIDS” described the importance of being able to work in a non-discriminatory environment on the dignity of people living with HIV and AIDS and dispenses with the notion that they are per se ill and unsuitable to participate in productive work. The misconception therefore that someone with HIV is so ill that he should not be employed assails the core of that person’s dignity and results in the unfair and unconstitutional condemnation to “economic death” as referred to by Ngcobo J in Hoffman (supra).

[55] The evidence establishes that the respondent’s primary concern was the applicant’s HIV status, embellished as it was by the expressed concerns about the other “illnesses”. Although the respondent may have had legitimate concerns about non-disclosure of what a layperson may have seen as a spate of illnesses affecting recently appointed employee’s ability to work, the nub of the respondent’s sense of grievance must be the failure to disclose his HIV status. This is the real reason for the dismissal, or at least the dominant reason. This is the only conclusion that would explain Malan’s outrage and the manner in which he proceeded to summarily and shoddily dismiss the applicant. This constitutes discrimination on an arbitrary ground prohibited by s 187(1)(f) and is therefore an automatically unfair dismissal. The respondent has therefore failed to discharge the onus of proving that the dismissal was not for an unfairly discriminatory reason.Once it is found that the HIV was the real reason for his dismissal the respondent is burdened with an evidentiary burden to prove that the discrimination was justified. I am now enjoined to consider the defence that the applicant’s termination was justified based on an inherent job requirement. This is a defence both to the automatically unfair dismissal claim and the unfair discrimination in claim B as is discussed below.

Was the discriminatory dismissal justified by an inherent job requirement?

[56] An inherent job requirement was held to constitute an absolute defence against unfairness in Leonard Dingler Employee Representative Council & others v Leonard Dingler (Pty) Ltd & others (1997) 11 BLLR 1438 (LC) at 148H. Although it is not defined in the Employment Equity Act its origin can be traced to Convention 111, in respect of which the committee of experts has emphasised the need for a strict interpretation. John Grogan 2 defines it as relating to the possession of a “particular personal physical characteristic (for example, being male or female, speaking a particular language, or being free of a disability) which must be necessary for effectively carrying out the duties attached to a particular position”.

[57] The court in IMATU and another v City of Cape Town ( (2005) 26 ILJ 1404 (LC) at [100]), relying on Dupper & Garbers Employment Discrimination: A Commentary in Thompson and Benjamin, South African Labour Law (Juta 2004) warned that the inherent job requirement defence should be applied restrictively in that “[A]ny legislatively formulated justification of discrimination constitutes, in effect, a limitation on the constitutionally entrenched right to equality and this militatesagainst an expansive reading of the phrase “an inherent requirement of the job”. In considering whether a blanket ban on employing diabetic fire-fighters was justified Murphy AJ held:

“110. Therefore I agree with the applicants that the respondent has failed to justify its unfair discrimination (in the form of a blanket ban). Without in any way denying that fire fighting is by its nature a hazardous occupation, to simply exclude all insulin dependent diabetics from the occupation on this ground is not justifiable.

111. The respondent is guilty of assigning characteristics which are generalised assumptions about groups of people to each individual who is a member of that group, irrespective of whether that particular individual displays the characteristics in question. It is treating all insulin dependent diabetics the same and imposing a blanket ban on the employment of that group as fire-fighters, irrespective of whether the particular individual - such as Murdoch, who is physically fit and in optimal control of his diabetes – displays any susceptibility to uncontrolled hypoglycaemic episodes.”

[58] The respondent has similar difficulties in proving the exclusion of an employee allergic to penicillin, in the absence of risk assessment and objective justification that he would be rendered unable to perform his duties. The respondent relied exclusively on the expert testimony of Herbst in proving this defence. The probative value of her evidence is however nullified by her lack of medical, veterinary or para-veterinary experience, although she is undoubtedly an able and experienced equestrian manager. She was unaware that depocillin was listed as a schedule 4 drug under the Medicines and Controlled Substances Act, 101 of 1965 and as such could only be administered on medical prescription. Her opinion that a penicillin allergy was contra-indicated for the administration of depocillin because of the risk of needle stick injury was refuted by the applicant’s version. She was moreover unable to dispute the applicant’s evidence that the erroneous ingestion of penicillin had merely caused him to suffer a skin rash. Although Herbst was in general a truthful and reliable witness, she did exhibit a degree of reticence which appeared from her guarded responses to certain questions. This is not surprising given her status as a longstanding and loyal employee, but it has obvious implications for her evidence on the justifiability of the penicillin allergy.

[59] The applicant submitted that a non-allergy to penicillin could not constitute an inherent job requirement in that:

the administration of depocillin by a stable manager in the absence of a medical prescription would be unlawful.

the evidence of both Prof Venter and the applicant dispenses medically and factually with the notion that a penicillin allergy is a contra-indication for administering penicillin to a horse.

Malan conceded that other than the two incidents of which he had no direct knowledge, the applicant had performed all the strenuous requirements of the job and there had never been a crisis involving horses during his short period of employment.

[60] The penicillin defence moreover confuses inherent and essential job requirements. I am therefore in agreement with the applicant’s submission that the penicillin defence was “a thin veil” designed to disguise the real reason for the dismissal. Had it indeed constituted a legitimate and genuine requirement of the applicant’s job it would have warranted specific mention in the detailed job description provided to the applicant or specifically canvassed with him in the interview, or at the very least raised by Malan in the confrontation with him. It was moreover not mentioned in either of the dismissal notices. It is also noteworthy that the penicillin defence emerged for the first time in the respondent’s expert notice on 12 November 2010, and in reply to a request for further particulars, more than two years after the cause of action arose. Furthermore, Malan’s evidence that he only became aware of the applicant’s penicillin allergy when this was reported to him, makes it eminently clear on the probabilities that it could not have manifested as a possible disqualification for the job of stable and yard manager at the time the applicant was employed. It is clear when regard is had to the chronology preceding this trial that the applicant is correct in asserting that the penicillin defence was a response to its expert witness notices listing eminent medical experts and HIV clinicians who would testify that the applicant was essentially healthy despite living with HIV and was more than capable of performing all work related tasks.

[61] For these reasons, in my view, the respondent has failed to prove that the penicillin defence constituted an inherent job requirement that and that it was objectively justifiable. Moreover, on the probabilities it was established that, even had the respondent succeeded in proving that it was an inherent job requirement, on its own admission it had not affected the applicant’s ability to perform his job.